Help for ineligible children and families in England

Accommodation under the Children Act 1989 for children and their families where there is no eligibility under homelessness legislation.

Accommodation for children and families under the Children Act 1989

Accommodation for the whole family of a 'child in need' may be provided under section 17 of the Children Act. However, legislation restricts the provision of support to migrants through this section. The Public Law Project has produced a Guide to support under Section 17 Children Act 1989 for advisers who are assisting destitute migrant homeless children and their families.

The services that a local authority provides in the exercise of its duties to children in need may include providing accommodation, and giving assistance in kind or in cash.[1] For example, cash may be given to assist a family in securing private rented accommodation by providing money for a deposit or rent in advance. See Accommodation under section 17 for more information.

See Accommodation under section 20 for more information on local authority duties to unaccompanied asylum seeking children, or children in need who cannot live with their families.

Example of factors that will require a child in need assessment include where a:

child regularly does not have adequate food, warmth, shelter or essential clothing

family’s limited financial resources increases the vulnerability of the children to criminal activity, for example illegal working

parent is unable to provide for material needs, which negatively impacts on the child.

Children of destitute parents

A child who is living with a parent who is destitute will be in need.

The parent must give as much information as possible to assist social services in forming a conclusion on its child in need assessment as to whether or not the family is destitute. Where social services have made thorough enquiries into the financial circumstances of the family and the parent or parents have simply failed to provide sufficient information about why previous sources of financial support have dried up, it is open to social services to find that a child is not destitute and thus not a child in need.[2]

However, such findings must be drawn fairly. Procedural unfairness results where social services draw adverse inferences from gaps in evidence without putting concerns about lack of information to the applicant.[3] Other forms of procedural unfairness include a local authority:[4]

failing to properly evaluate the substantial evidence of destitution provided by the applicants, including statements from friends and family explaining why they could no longer provide support, and evidence from children's school of homelessness

not identifying why the evidence provided was disbelieved

not reviewing its initial assessment with a 'fair and open mind'

ignoring material which contradicted its initial findings.

Inconsistencies in an applicant's account of her/his situation can be taken into account by social services in deciding that a child is not, as is claimed destitute, but these must give a 'reasonable basis' to infer that s/he is destitute: something more than suspicion or feel is required.[5]

Impact of 'right to rent' legislation on a child in need assessment

In one case, the High Court held that a child in need assessment was unlawful because it failed to take into account that a parent who had overstayed her visa was unlikely to be able lawfully to rent accommodation for herself and her two children because of the 'right to rent' provisions of the Immigration Act 2014. The court rejected the authority's suggestion that the applicant could avoid the right to rent provisions by paying for hotel accommodation, explaining that a person whose occupation amounts to living in a hotel will be 'captured' by the restrictions. The alternative of a series of short-term hotel lets would be disruptive to the children, and therefore detrimental to their welfare.[6] Furthermore, where a person has stayed with friends or family before having children (if rent free, this accommodation would be exempt from the 'right to rent' provisions), the local authority should, as part of the assessment, check that accommodation which was available to a single person would also be available in the 'very different situation' in which the applicant has children.[7] Even where a person is applying for a permission to rent under home office discretion, a local authority should take into account the fact that permission may be refused.[8]

Note that accommodation provided as a consequence of any duty or power placed on a local authority, eg under sections 17 or 20 of the Children Act 1989, is exempt from the 'right to rent' restrictions.

Offering to take a child into care

A child in a destitute migrant homeless family will be 'in need' of accommodation as a result of her/his primary carers being prevented from providing them with suitable accommodation or care due to their immigration status and the fact that they are not entitled to social security and benefits. It may be a breach of the family's rights under Article 8 of the European Convention on Human Rights (ECHR) to offer accommodation only to the child under section 20 of the Children Act 1989. See 'Dependent children living with their families' at Children in need.

Ineligible for section 17 support

Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prohibits social services providing support under section 17 Children Act 1989 to five classes of persons:[9]

a person, or the dependant of a person, who has been accepted as a refugee by a European Economic Area (EEA) state (other than the UK) and who is not an EEA national

EEA nationals (other than of the UK) and their dependants

a person who was, but is no longer, an asylum seeker who fails to co-operate with removal directions issued in respect of her/him

a person who is unlawfully present in the UK, that is in the UK in breach of immigration laws. Case law has confirmed that this includes those who have not been temporarily admitted to the UK (ie those who have applied for asylum in-country) and whose claims for asylum have been refused, even if they have not been issued with removal directions[10]

a failed asylum seeker and family who have failed without reasonable excuse to take reasonable steps to leave the UK voluntarily or place her/himself in a position to leave voluntarily.

These provisions do not apply where section 17 provides support directly to a child in need,[11] or where it is necessary to provide support in order to avoid a breach of a right under the European Convention on Human Rights or a EU law right.[12] See Legislation restricting community care help .

EEA/EU nationals

European nationals with a right to reside in the UK will most commonly seek assistance under Part 7 of the Housing Act 1996 if they are homeless and have a dependent child in their household. However, where a European national in this situation either has no right to reside, or has a right to reside that does not confer eligibility for homelessness assistance, s/he can only be provided with accommodation together with her/his dependent child(ren) under section 17 of the Children Act if the failure to do so would result in a breach of either human or European Treaty rights (see above).

Asylum-seeking families with children

Even if an asylum-seeking family includes a disabled 'child in need', as defined by section 17 of the Children Act 1989, UKVI remains responsible for providing accommodation and support that meets their needs, including adapted accommodation and special diets.[13] The support and accommodation provided by UKVI must be adequate for the needs of the family. For more information, see Support from UKVI.

Unaccompanied asylum-seeking children

Under the Children Act 1989, all asylum applicants below the age of 18 who arrive in the UK without close adult family members, either accompanying them or already in the UK who they can join, are the responsibility of local authority social services departments, regardless of immigration status.

Under statutory guidance, local authorities must conduct a comprehensive assessment of a child's needs and put into place special provision to 'support dialogue' with these children during assessment.[14] The assessment must, where applicable, consider the child's needs resulting from her/him having being the victim of human trafficking or being an unaccompanied asylum seeker child.[15] The type of assistance provided by local authorities ranges from food and accommodation to foster carers, leisure, language assistance and the provision of trauma counselling.

Responsible authority

Unaccompanied asylum-seeking children are the responsibility of the local authority in whose area they are physically present. It is possible for more than one authority to be responsible at the same time where a child has a link to more than one area, for example, living in and attending school in separate local authority areas.[16]

Dispersal

A local authority may ask another authority to take over its duties towards an unaccompanied asylum-seeking child. The 'transfer of responsibility' provisions in the Immigration Act 2016 are designed to provide a more equitable distribution of responsibility throughout English local authorities. Under these provisions, a local authority (the 'first authority') can request another local authority (the 'second authority') to take over the duties towards the unaccompanied child. Once the second authority has accepted responsibility, the child will be treated as never having been ordinarily resident in the first authority's area.[17]

If the second authority does not comply with the request the Home Office can direct it to provide the first authority with written reasons for its decision.[18]

The transfer of responsibility scheme is currently voluntary, but the Home Office has the power to devise a scheme under which it can direct local authorities to accept responsibility for an unaccompanied child.[19]

Family member in EU country

Under Article 2 of the Dublin II Regulations, if the child has a family member (parent or guardian) living in a Member State of the EU, then as long as it is in the child's best interests, the State in which the child's family member lawfully resides will take on responsibility for the child and consider her/his asylum application.

Age assessment

The courts have given guidance on the appropriate processes to be adopted when a local authority is assessing a young person’s age.[20] Assessments complying with these principles are described as 'Merton compliant'. This requires that a young person must be given the opportunity to:

respond to provisional adverse findings

have an 'appropriate adult' present in age assessment interviews.

There have been further various points of principle established by the courts, including that:[21]

age is a matter of fact and it is for the court to determine the age of an individual where this is disputed

the starting point in the absence of documentary evidence of age is the overall credibility of the young person

age cannot be determined solely from appearance and demeanour (except in clear cases).

The Association of Directors of Children's Services (ADCS) and the Home Office have provided joint working guidance on how staff in the Home Office and local authorities should cooperate by sharing information related to age assessment where either disputes the age of a person claiming to be a child. ADCS has also published Age Assessment Guidance to assist social workers undertaking age assessments. Further useful information is available from Coram Children's Legal Centre.

Duties to care leavers

Social services have a duty under the Children Act 1989 to assist certain care leavers who are 'former relevant children' to the extent that their welfare requires it. This includes the power to provide them with accommodation. A former relevant child is a young person aged 18 or over who has spent at least 13 weeks in care from the age of 14, at least one day of which was while they were 16 or 17.

The local authority cannot pass the burden of assisting a former relevant child who is also an asylum seeker (or a failed asylum seeker) to UKVI (asylum support service). UKVI is not required to provide accommodation if the asylum seeker is entitled to accommodation under some other provision, such as the Children Act 1989 and therefore social services cannot, when considering whether the former relevant child's welfare requires it, take into account the possibility of UKVI support.[22] For more information on duties to care leavers, see Leaving care provisions.

If the asylum seeker reaches the age of 18 and is not a former relevant child (for example because they did not spend 13 weeks in care), any duty to accommodate will fall to UKVI, unless they have an eligible need for care and support which is not solely caused by being destitute (ie s/he passes the 'destitution plus' test). In this case, social services will have a duty to meet those care needs (with the provision of accommodation if this is identified as the appropriate way to meet the needs) under the Care Act 2014.

Asylum seekers are not eligible for homelessness assistance from the local authority under Part 7 of the Housing Act 1996 unless granted some form of leave to remain (eg refugee status or humanitarian protection) that makes them eligible. See Persons eligible for assistance: non EEA/EU for further information.

Families with children where asylum support has ended

Where a family of failed asylum seekers with a 'child in need' had sought support under the Children Act 1989, the High Court held that the local authority could not refuse, or withdraw, support and accommodation to a 'child in need' and his family on the basis that section 4 support was, or might be, available from UKVI, unless it could show that:

UKVI was able and willing (or if not willing could be compelled) to provide section 4 support, and

section 4 support was sufficient to meet the child's assessed needs.

This is because UKVI's power to provide section 4 support is 'residual' in respect of the local authority's powers and duties under section 17 of the Children Act.[23]

The High Court has held that a child in a failed asylum seeking household who had previously been assessed as not 'in need' under the Children Act should have had his needs reassessed in light of the change of circumstances when the family was threatened with homelessness. Even if section 4 accommodation and support was provided, the court held it was not reasonable for the authority to take a 'wait and see' approach in respect of whether the accommodation and support met the child's needs before carrying out a 'child in need' assessment under the Children Act 1989, because of the residual nature of section 4 support.[24]

Where UKVI decides to suspend or withdraw support, for instance because an asylum seeker has breached one of the conditions under which accommodation was being provided (see Conditions attached to support), the children of the asylum applicant may become eligible for support under the Children Act. In these circumstances, the local authority becomes responsible for the children. Although the Immigration and Asylum Act 1999 does not specifically mention this power, assistance under section 17 of the Children Act may include assistance for the whole family. Local authority provision of support for the whole family can be justified on the grounds that it is with a view to promoting and safeguarding the welfare of the child.[25]

Level of assistance to ineligible migrants

It is for the local authority to set the rules and adopt a policy about which level of assistance can be provided under section 17 to destitute migrant homeless families, but such rules are open to challenge by way of judicial review on public law grounds.

The level of assistance must not be fixed according to the rates payable under another statutory scheme or provision, for example, child benefit rates or payments to failed asylum seekers under section 4 Immigration Act 1999 although such rates or payments can be used as a reference when determining the level of assistance that should be provided to an individual child in need and her/his family.[26]

Cooperation between housing departments and social services in cases involving children

If a homeless applicant has a child under the age of 18 normally residing with her/him, and the housing authority has reason to believe that the applicant may be ineligible for assistance, it is under a duty to co-operate with the social services' authority or department (whether they are unitary authorities or not). Unless the authority considers that there is a risk of harm, it should seek the applicant's consent to make a referral to the social services department, which should then assess whether the child is a child in need (see above). The housing authority must in turn offer advice and assistance as is reasonable when requested by social services. This does not amount to a duty to provide accommodation.[27]